This article explains the notices required before an eviction complaint is filed, the process of filing and serving the eviction complaint, and what you can expect at the court hearing in an eviction case.
Notices Required Before an Eviction Suit
Except for most nonpayment of rent cases, New Jersey law requires a landlord to serve a notice to quit and, in some cases, a notice to cease, before filing an eviction complaint. See below for the causes for eviction and the notices that are required for each cause. See also Failure to follow federal notice requirements and procedures in Defenses to Eviction. If you live in project-based federally subsidized housing or public housing, HUD regulations and state case law require the landlord to send you a notice terminating your tenancy before filing any eviction action, including one based upon nonpayment of rent.
Notice to cease. A notice to cease is a notice or letter telling you to stop certain conduct that is not allowed under your lease or under the Anti-Eviction Act. The notice must outline specifically the wrongful conduct. Cite: Carteret Properties v. Variety Donuts, 49 N.J. 116 (1967). The notice must also tell you that if you stop the wrong conduct, you won’t be evicted. If you stop the conduct that is described in the notice, then the landlord cannot evict you. Cite: A.P. Development Corp. v. Band, 113 N.J. 485 (1988) and RWB Newton Assoc. v. Gunn, 224 N.J. Super. 704 (App. Div. 1988). A notice to cease is only necessary if you are charged with being disorderly, breaking the rules and regulations in the lease, breach of lease, or habitually paying the rent late.
Notice to quit and demand for possession. A notice to quit is a notice or letter from the landlord that terminates your tenancy and tells you to move out by a certain date because you have engaged in certain conduct that is not allowed under your lease or under the Anti-Eviction Act. For those eviction causes that also require a notice to cease, the notice to quit also will tell you that since you have ignored the notice to cease, you must move out by a certain date. The notice must tell you specifically what it is that you have done wrong. For causes that do not require the landlord to give you a notice to cease, this is the first and only notice you will get before the landlord can file an eviction suit.
Service of the notice to quit. A notice to quit must either be:
- Given to you directly;
- Left at your house, apartment, or mobile home with someone who is at least 14 years old; or
- Sent by certified mail
The notice can be sent by regular and certified mail at the same time. If you don’t pick up the certified mail and the regular mail isn’t returned to the landlord, then the court will presume that you have been served. Cite: N.J.S.A. 2A:18-61.2.
The court complaint. How does a landlord start an eviction suit? The landlord must prepare a complaint for your eviction. The complaint outlines the reasons for the eviction.
The summons. The summons is a paper from the court that tells you when and where the court will hear your case. The summons is attached to the complaint, and together these papers are given to you by the court. The summons and complaint can be mailed to you by the court, delivered to you by an officer of the court, left at your home with a child over the age of 14, or posted on your door.
Information about tenants’ rights. The Supreme Court has adopted a set of instructions that a judge will read to the audience in court. These instructions, referred to as “Calendar Instructions,” explain court procedures and let tenants know about some of their rights. A written set of these instructions must be served with the summons and complaint. Cite: Community Realty Management v. Harris, 155 N.J. 212 (1998).
Time from complaint to court date. The summons and complaint will tell you when to appear in court. The court rules require that you be served a copy of the complaint at least 10 days prior to the court date. The court serves you by sending a copy of the complaint by regular mail, and having a court officer post the summons and complaint on your door.
Right to an Interpreter
The New Jersey Judiciary provides court interpreting services. During a court proceeding, the court interpreter will help you to communicate with persons in the courtroom, including your lawyer, court staff, and the judge. If you need an interpreter, notify the court as soon as possible. When the court has scheduled a matter requiring an interpreter, parties are required to notify the court if the matter settles or is otherwise to be postponed so that the court does not incur unnecessary interpreter fees. A party who fails to notify the court may be assessed the cost of the interpreter. For more information about how to request an interpreter, including contact numbers, see Interpreting Services (from New Jersey Courts).
Postponing Your Court Hearing
You should call the Clerk of the Superior Court, Special Civil Part, or the judge’s office, if for some reason you can’t make it to court on the day of your case. You should explain why you need a new court date and ask for a postponement (also called an adjournment). You should also call the landlord or the landlord’s attorney and ask the landlord to agree to postpone the hearing. You should try to ask for an adjournment at least five days before the court date. Notify the landlord that you are asking for an adjournment. If you do not ask five days in advance, the request may not be allowed unless you can show exceptional circumstances. Last-minute requests for postponements are usually not allowed.
If an emergency such as illness or a car breakdown prevents you from going to court, you should call the court and ask for a postponement, even if it is the morning of the court hearing.
Important note: In some counties, postponements are rarely given. In those counties, the landlord has to agree and there has to be a very good reason to get your hearing postponed.
Going to Court
The date, time, and place of the court hearing in your case are listed on the summons. You must appear in court at the right date and time in order to be heard in your matter. It is best to plan to be at the courthouse 15 to 30 minutes before your hearing. If you are driving, it may be difficult to find a parking spot. You will have to go through security when entering the courthouse, and there could be a line. It is very important that you are inside the hearing room when the judge calls out the names of the landlord and tenant in each case.
If you do not appear in court on the day of the trial, the clerk of the court will enter a default judgment for possession against you. This means that the landlord can evict you once the landlord takes certain steps. The landlord has to file an affidavit that meets the following conditions:
- The affidavit must state why you are being evicted and set forth the “good cause” required by the statute.
- The affidavit must state that all extra fees (such as late fees and attorney’s fees) that are included in the complaint for nonpayment of rent are permitted to be charged as rent by the lease and by federal, state, and local law. Note: If an attorney represents the landlord, the attorney must sign the affidavit.
- If the eviction requires service of notices such as a notice to quit or a notice to cease, the landlord’s affidavit must have all of the notices attached. The affidavit must state that the landlord served the tenant with these notices and that the facts in the notices are true.
The warrant of removal process is further discussed in What Happens After the Eviction Hearing?
The clerk of the court cannot enter a default judgment against a tenant who is a minor or mentally incapacitated. A court can enter a default judgment against a mentally incapacitated person, but only after it gives the tenant’s guardian five days’ written notice.
If the landlord does not answer, the case should be dismissed. You should stay in court, however, until you are given permission to leave by the judge or another court official.
The Supreme Court has adopted instructions that must be read at the start of each session of landlord-tenant court. These instructions are extremely important because they will help you to understand court procedures and some tenants’ rights.).
Important topics covered by the instructions include:
- The calendar call
- Waiting for trial-what happens if your case has to be adjourned to another day
- Nonpayment cases (getting your case dismissed if you pay your rent by a certain time)
- Eviction procedures (the warrant for removal)
- Stopping an eviction after a judgment for possession
The instructions must be read in person by the judge. The instructions also must be given in Spanish, but this may be done by videotape.
A copy of the instructions must be served with the court complaint.
A copy of the instructions must also be available in written form in court. The written instructions will also be available in Spanish. If you cannot find the written instructions, ask the clerk of the court.
There must be a second reading of the instructions for latecomers. This may be done by videotape.
Settling Your Case With the Landlord
You can always settle your case with your landlord, even after you receive a summons and complaint, and until the judge actually begins a hearing in your case. If you reach an agreement to settle your case, get the agreement in writing and be sure that you and your landlord fully understand the terms of the agreement. You should only make an agreement with your landlord if the agreement is both fair and realistic. An agreement that you cannot keep will only lead to your eviction at a later time.
Be careful if you settle your case before the court hearing. If you reach an agreement before the court date, be sure that the landlord agrees to dismiss the complaint and/or officially ends the case against you. This requires the landlord to notify the court clerk. You should also check with the court clerk yourself to ensure that the complaint has been dismissed.
In settling a case, try to get the landlord to agree to terms that will help you. For example, try to get the landlord to agree to make repairs in your apartment and list those repairs in writing in the settlement agreement.
What should you do if you reach an agreement with the landlord on the day you have to go to court? To dismiss the complaint on the court day, the landlord has to tell the judge directly. This means that you should wait until the landlord tells the judge that the case has been settled—no matter when you settle. It is important that that the court be notified by the landlord.
There have been situations where a landlord tells the tenant that the case is settled and that the court case will be dropped. The tenant then does not show up in court. The landlord then will go before the judge and get an eviction order for the absent tenant. Remember: Always go to court on the date listed on the summons.
Some settlements are “consent judgments” where the tenant remains in the property so long as the tenant upholds the agreement. The form used is APPENDIX XI-V C CONSENT TO ENTER JUDGMENT (TENANT REMAINS) (from New Jersey Courts). A “consent judgment” means that the parties agree that a judgment will enter. If you fail to live up to the agreement, the landlord must file a certification in order to proceed with a warrant for removal. The certification must state exactly why the landlord claims you violated the agreement and list the facts to support this position. The certification must be sent to you in the mail or posted on your door.
Some settlements are consent judgements where the tenant agrees to move. The form used is CONSENT TO ENTER JUDGMENT FOR POSSESSION (TENANT VACATES) (from New Jersey Courts). Even if you agree to move by a certain date, the landlord still has to go through the warrant of removal process to evict you. If you agree to pay money and also move, and you are not represented by an attorney, you will have to go before the judge and the judge would have to approve the agreement. For more information on settlements, see above.
In most courts, mediation is offered in eviction cases. This means that, before a judge will hear an eviction case, you and your landlord must first meet with a law clerk, other court workers, and even other attorneys, to see if the case can be settled. These people are called mediators. A mediator is not supposed to take sides. The mediator’s job is to help you and your landlord find a way to reach an agreement without having to go to trial.
In mediation, for example, if you don’t have all of the rent you owe, you may be able to get your landlord to agree to allow you to pay part of the back rent each month until the whole amount is paid. If the landlord agrees to this, the mediator will usually write down the agreement and give each of you a copy.
A mediator should not offer you any confusing legal advice, especially if you don’t have a lawyer or if you are not sure of your legal rights. A mediator is not a judge. If a mediator pressures you, ask to end the mediation.
You are not required to reach an agreement in mediation. You do not have to accept the mediator’s suggestions. You always have the right to go before the judge and have the judge decide your case.
Be Prepared to Defend Your Case in Court
The only issues before the judge are whether or not the landlord has grounds for eviction, and whether you have any defenses. If the landlord wins, the landlord has the right to remove you from the premises. If you move and the landlord alleges that you owe money, the landlord would have to file a different type of complaint to try to collect the money from you.
The judge will hold hearings in individual cases after he or she calls the list of all of the cases. This means that when you go to court for your hearing, you must be ready to show the judge why you should not be evicted. You must be ready to defend yourself against the cause or causes for eviction that are listed by your landlord in the complaint. The common defenses to eviction are explained in more detail in Defenses to Eviction.
NOTE! These defenses could include, for example, showing that the landlord has not sent you the proper notice to cease or notice to quit, or showing that the conduct that the landlord is complaining about did not happen.
Whatever defenses you use, you must be prepared to present proof (evidence) to back up your defense. This evidence can include written documents, photographs, the testimony of witnesses, and your own testimony. You must take with you to court any and all evidence you think you need for your defense. Examples of the types of evidence that may be used include the following:
- Photos of your apartment
- Receipts for rent or repairs and canceled checks
- Inspection reports (the court may require the inspector to come to court and may not consider reports without the inspector being there)
- A copy of your lease and letters to the landlord
Be prepared to explain your defenses to the judge. Remember the judge is there to listen to both sides and make a decision.
Any witnesses whom you call to testify on your behalf must be present in court on the day of the hearing. The court will not accept a letter from your witness. You will also testify on your own behalf, so it is important for you to practice your testimony—what you are going to say to the judge—before you go to court.
A hearing is the time when the judge listens to witnesses and reads documents about your case. The judge hears from the landlord and the landlord’s witnesses first. At this point, the landlord may introduce or give the judge written letters or documents to prove his case. You have the right to examine these documents. After the landlord and his or her witnesses have testified to the judge, you can ask them questions about what they have said. You should not be afraid to ask any questions you have. You do not tell your side of the story at this time. You only ask questions. Your landlord or his or her witnesses may not be able to answer your questions or may say something that will help your case.
The judge will hear from you and your witnesses next. This is when you will get a chance to tell the judge your story and explain why the landlord should not be able to evict you. It is also your time to give the judge any letters, reports, photographs, or receipts that support your side of the argument. The landlord or his or her lawyer can question you. You can then present any other witnesses or evidence you think is important to your defense. For example, if your defense is that your apartment is uninhabitable because of the conditions, you should request that the housing inspector who inspected your apartment appear as a witness, and that he or she bring the inspection records. Note: If the inspector will not appear voluntarily, you will have to subpoena the head of the inspection department. Ask the clerk of the court or a Legal Services office for a subpoena form and instructions on how to issue it. You will need to personally serve (hand deliver) the subpoena to the party that you want to serve as a witness in court at least five days before the trial/hearing date.
The Judge’s Decision
The judge makes a decision after hearing all of the evidence from you and your landlord. The judge usually announces his decision immediately after hearing the evidence. If you win, the judge will dismiss the complaint. This means that you are not evicted and you can remain in your rental unit.
If you lose, the judge enters a judgment for possession in favor of the landlord. A judgment for possession is an order for your eviction. It gives the landlord the legal right to have you removed from your apartment or house.
The next step in the eviction process is the act of removing you from your rental unit. This does not happen right away and takes some time to complete. You also have some rights even after the judge gives the eviction order.
For more information, see What Happens After the Eviction Hearing? and How to Put Off the Eviction Process if You Need More Time.